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Supreme Court Confirms Principles for Validity of Copy of Lost Will

On Wednesday 29 June, Justice Stanley of the Supreme Court of South Australia upheld an application brought by Piper Alderman’s Private Client Services team that a copy of a lost will be admitted to Probate.

In the Estate of Frances Ponikvar (Deceased) [2016] SASC 95, Justice Stanley agreed that the common law presumption that the lost original will of Frances Ponikvar had been destroyed was rebutted.

The case is useful in that Justice Stanley’s summary of the applicable principles that were submitted to rebut the presumption that a copy will only existed because the deceased had destroyed and therefore revoked the original. The case is also notable in that the decision comes some six years after the date of the deceased’s death and the number of affected relatives who did not reside in Australia.

Our Private Client Services team were originally instructed by the executor to approach those relatives to obtain their consent to his Court application to admit the copy of the will to Probate, however, one surviving relative of the deceased declined to consent and opposed the admission of the copy will to probate. Partner, Rod Jones, assisted by Associate, Christina Flourentzou are pleased that the Court was persuaded that the deceased did not intend to destroy the original of her will and that the copy of the will could be admitted to Probate, thereby avoiding an intestacy and a distribution of the estate to distant relatives residing throughout Slovenia and the United States and the significant administrative costs that would entail.

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